This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 26, 2000. The appellant (claimant) had asserted that his injury of _________, led to his current back problems which resulted in disability beginning May 1, 2000. While the hearing officer agreed that the claimant was unable to obtain and retain employment after May 1, 2000, due to his herniated discs, and the hearing officer agreed that the claimant had “aggravated” his preexisting low back condition on _________, he found against the claimant because that injury did not “cause” his herniated discs.
The claimant has appealed. He argues that the hearing officer erred by changing the issues which altered the thrust of the claimant’s case. He further argues that the determinations against the claimant are against the great weight and preponderance of the evidence. The respondent (carrier) responds that the actions and findings of the hearing officer were correct.
DECISION
Reversed and rendered.
The claimant was employed as a custodian by (a university) insured through the (self-insured). It was clear that he had a history of back problems. The claimant’s problems with his back began in 1989. He experienced what was described at that time as sciatica down both legs. The claimant was found in 1989 to have three degenerative discs and “protrusions at L3-4, L4-5, and L5-S1.” He was treated again in 1993 when his back went “out” and this involved constant low back pain which radiated into both thighs and calves. In 1994, the claimant had another back injury. Although the hearing officer stated as part of his decision that the evidence was “contradictory” as to whether he had herniated lumbar discs before May 1, 2000, in fact, the claimant had an August 1994 MRI that reported herniations at the level in issue. The herniation at L4-5 was a moderate sized postlateral herniation, and the L5-S1 was a small paracentral herniation. It appears from the notes of Dr. Y, his doctor, that surgery was recommended to the claimant sometime in mid 1994 but when his pain decreased, the claimant did not pursue this.
In __________, the claimant sustained another low back injury. Ironically, the account of injury was similar to that in the case under consideration here: that the elevator on which he was riding at the university “jerked.” In a previous CCH, the claimant was found to have preexisting lumbar herniations, and his __________ injury was limited to an annular tear. This was not appealed. The claimant said that he missed work from June through August 1999, but then was returned with no restrictions. His treating doctor for this injury was Dr. R.
An MRI taken on June 22, 1999, was reported as showing a small protrusion at L3-4 which mildly effaced the thecal sac and a slightly more prominent protrusion at L5-S1 resulting in minimal central canal stenosis. He had an annular tear at L5-S1 and bilateral facet arthropathy at that level. L4-5 also showed a mild broad-based disc bulge and a desiccated disc.
The claimant said that as he was riding in a university elevator on _________, once again the elevator jerked up and then dropped four inches, and he felt immediate pain in his back. The claimant said he felt a different pain that he had not felt before, which ran down his left leg. He saw Dr. R on December 15, and said that he reported this incident to Dr. R. There was conflicting evidence about whether this appointment was already scheduled or not. Dr. R’s notes of that visit do not record the incident, although he noted that the claimant “now” had some left anterior thigh pain in addition to his persistent low back midline pain. Dr. R indicated on this report that the date of injury was __________. Dr. R stated that the claimant could return to work without restrictions on December 16, 1999.
The claimant said that he continued to work, but with gradually increasing pain. He did not seek medical treatment, however, until May 1, 2000. He said that as he was walking toward his car that day to go to work, he began to feel increasing pain, and when he opened his car door felt great pain. He went to a hospital emergency room after calling an ambulance because he could not walk. On May 3, 2000, he had an MRI which was reported as showing “mild bulges” at L4-5 and L5-S1 without significant mass effect. There was a mild loss of height and signal intensity at L3-4. The impression was multilevel disc disease. The claimant testified that he had been unable to work since May 1, 2000, due to the pain in his back and left leg, and numbness in his leg. He said his left leg also dragged.
The claimant’s second treating doctor, Dr. B, testified at the CCH and his records are in evidence as well. He said that the claimant had herniated discs and radiculopathy. He stated that while opening a car door would not cause radiculopathy, it could aggravate it. He did not believe opening the car door was a factor in the claimant’s condition.
Dr. B said that bulging discs and degenerative discs could cause radiculopathy, but not an annular tear. He implicated lumbar level compression in the claimant’s leg symptoms. It was his opinion that the _________, injury was the precipitating factor in what he understood to be progressively worse pain. Dr. B said that the jerking of the elevator would put compressive forces on the spine. He was aware of and had reviewed some, but not all, of the records of the claimant’s back condition over the years. However, when he first saw the claimant on May 9, 2000, it is clear from his report that he was not then aware of injuries prior to the __________ injury. Dr. B took the claimant off work, and noted on this slip that the claimant had herniated discs, radiculopathy, and spasms. The claimant continued to have pain and spasms and limited range of motion.
The claimant was also treated by Dr. F, who reported “suspect possible herniated disc at L4-5,” and muscle sprain and sacroiliac strain. The claimant has been treated conservatively. The claimant’s medical records document that he is overweight.
As the claimant pointed out at the beginning of the CCH, when the issues as stated from the benefit review conference (BRC) were discussed, the self-insured did not dispute the _________, injury, prior to May 2000. This was borne out by the record. Although the attorney for the self-insured was somewhat persistent in arguing that the self-insured had only accepted a “compensable incident” (an event not included in the 1989 Act), she eventually agreed that a compensable injury had occurred on _________, although she would not stipulate to what that was. The hearing officer announced that he would find that the claimant had an injury, and his determination that a low back injury occurred on _________, has not been appealed.
The issues reported from the BRC were whether the compensable injury was a “producing cause of the L4-5 and L5-S1 injury after May 1, 2000.” The self-insured responded to the BRC report by asserting at this point that only a “compensable incident” had occurred. The claimant argued at the CCH that the substance of this issue at the BRC was that there had been an intervening injury on __________. The second issue was whether disability after May 1, 2000, resulted from the compensable injury. While the hearing officer left the disability issue intact, he altered the first issue by setting out two separate issues: whether the _________, compensable injury was a “producing cause” of the claimant’s L4-5 and L5-S1 herniations, and whether the sole cause of the herniations was something other than the _________, compensable injury. While the self-insured indicated in its response to appeal that this was done with agreement, the hearing officer announced that he would refashion the issues and if what he was doing was incorrect, then the parties could raise this on appeal and their appeal rights would not be compromised.
The BRC report indicates that the position of the self-insured on the first issue was that the claimant did not injure himself on _________, but all of his problems were solely due to his previous work-related injury. The position was similar to disability.
While the issue from the BRC with respect to producing cause was indeed not well cast, we agree that the recasting of the issues as phrased by the hearing officer in this case was error. It is clear that the parties were not searching for a “cause” of the discrete disc herniations. The original issue had been phrased in terms of L4-5 and L5-S1 “injuries,” which encompass broader conditions in this case than the herniations. Rather, they were arguing over whether the claimant’s being out of work after May 1, 2000, was traceable back to the _________, injury. This appears to have been mixed in with a somewhat belated attempt of the self-insured to dispute compensability of the _________, injury. While it may be that the claimant had to show that his _________, injury was “a” producing cause of the condition that kept him off work beginning May 2000, we cannot agree that this burden was correctly cast as his having to show the “cause” of his herniated discs. The hearing officer, in the discussion portion of his decision, agreed that the claimant sustained an “aggravation” of his preexisting “chronic low back condition” on _________, which consisted in part, but not exclusively, of herniated discs. The evidence, including medical and testimonial evidence of the claimant, supports this. The previous hearing officer, in her unappealed decision, found that the claimant had herniations. There is no medical evidence which would support finding that the herniated discs were not also aggravated as part of the _________, injury.
The claimant’s testimony described numbness and dragging of his left leg as the reason he was off work, in addition to his back pain. Dr. B’s testimony drew the causal connection of his May 1, 2000, setback to the _________, injury. He discounted the event of opening the car door as a causative incident, although he said it could aggravate radiculopathy. Had the issue been properly recast in terms not just of the herniations, and their cause, but the genesis of the lumbar spine problems clearly plaguing the claimant in an enhanced fashion after May 1, 2000, there would seem to us to be evidence that meets the burden of showing “a” producing cause from the _________, low back injury.
The hearing officer has found as fact, also unappealed, that the carrier failed to prove a “sole cause” of the herniations. We cannot discount this, as did the hearing officer, as a surplus finding, as the carrier would indeed have the burden to show a sole cause for the claimant’s post-_________, condition and subsequent disability once “producing cause” was shown. Although the finding is framed in terms of the erroneous concentration on the “cause” of the herniations, we agree that the sole cause of any of the claimant’s back conditions that were manifested on May 1, 2000, was not proven.
We reverse Finding of Fact No. 3 and Conclusions of Law Nos. 3 and 5, as unsupported by the evidence, and render a decision that the claimant’s compensable back injury of _________, included an aggravation of his preexisting herniated discs, and that he had disability therefrom beginning on May 1, 2000, and continuing to the date of the CCH. We order that benefits be paid in accordance with this decision.
Susan M. Kelley – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Philip F. O’Neill – Appeals Judge